The misleading statements flying around are a reflection of the fact that none of this is normal — a justice dying suddenly in an election year, a historically unpopular president, Democrats pressured to battle the president even when they can't win, the reflexive partisanship that defines Washington these days. And now, senators face a potentially historic change to the filibuster that could change the Senate forever. This is our new normal, and senators are scrambling to find ways to explain it.
“Very few senators want where this is going to end up, which is ending the Supreme Court filibuster for nominees,” said Russell Wheeler, a Supreme Court expert with the Brookings Institution. “So they're on this train headed to disaster and no one can put the brakes on it.”
We'd be naive if we thought this was the first time politicians spin the facts to suit their political need. But because this whole Supreme Court-filibuster drama is confusing enough to follow, let's straighten some of the facts out.
1) Democrats' misleading '60-vote threshold' marker
What they're saying: " ... [O]n the most important of decisions, 60 votes is called for. That's why you get a mainstream — that's how you get a mainstream justice. Just about every — Mitch calls it a filibuster. We call it the 60 vote standard” — Senate Minority Leader Charles E. Schumer (D-N.Y.) on NBC's “Meet the Press” Sunday.
Translation: If a Supreme Court nominee isn't popular enough to get 60 votes — three-fifths of the Senate — then he or she shouldn't get approved by the Senate.
Why that's misleading: It's true that most recent confirmed justices have received 60 votes on their confirmation. But not all. Of the last four Supreme Court confirmations, three of them got more than 60 votes; President George W. Bush appointee Justice Samuel Alito got 58 votes.
But there's no rule that says justices have to get 60 votes. The only rule about how to confirm Supreme Court nominees is that they have to get a simple majority vote, 51. Now, if senators want to launch a filibuster of a nominee, they can. And ending a filibuster requires 60 votes to overcome before senators can take a final yes-or-no, majority-rules vote on Gorsuch's confirmation. The Post's Fact Checker Glenn Kessler has done some great work explaining this.
Schumer is also glossing over the fact that today's Washington is much more partisan than the Congresses that confirmed these other judges. Democrats are facing enormous pressure on the left to do anything they can to try to stop President Trump and his agenda.
Senate Dems, let's be very clear: You will filibuster & block this SC nom or we will find a true progressive and primary u in next election.— Michael Moore (@MMFlint) February 1, 2017
From the left's perspective, that obstruction may be justified: Extraordinary times call for extraordinary measures. But if these are extraordinary times and Democrats are using extraordinary measures, it doesn't make sense to try to fit them into past precedent.
The bottom line: One could argue there should be a 60-vote threshold for nominees. As Schumer said, that's how you get a mainstream justice, by getting Democrats and Republicans to vote for him or her. But should is not the same thing as exists. And in today's partisan environment, it's hard to see how any nominee Trump picked would get 60 votes.
2) Republicans' misleading statement that Democrats' Gorsuch filibuster is unprecedented
What they're saying: “[W]hat I can tell you is that Neil Gorsuch will be confirmed this week. How that happens really depends on our Democratic friends, how many of them are willing to oppose cloture on a partisan basis to kill a Supreme Court nominee. It never happened before in history, in the whole history of the country.” — Senate Majority Leader Mitch McConnell (R-Ky.) on NBC's “Meet the Press” on Sunday.
Translation: Democrats, do you reeally want to filibuster Gorsuch? If you do, it'll be the first time there's been a successful partisan filibuster of a nominee in Supreme Court history.
Why that's misleading: Almost five decades, ago, there was a successful, mostly partisan filibuster of a Supreme Court nominee. And Republicans were the ones who launched it.
In 1968, Chief Justice Earl Warren announced he'd retire, but he promised he'd wait for President Lyndon B. Johnson to confirm his successor. Johnson subsequently nominated Supreme Court Justice Abe Fortas to take the top spot.
But just about everything that could go wrong with Fortas's nomination did. The transition happened in the last seven months of Johnson's presidency, when the Senate viewed him as a lame duck.
Senators were also concerned about Fortas's close relationship with Johnson and the fact he'd accepted thousands of dollars from private corporations for speaking at universities.
Republicans launched a filibuster. They were joined with several Southern Democrats, which is what allows Senate Republicans to say today that Gorsuch's filibuster is uniquely partisan. But these Democrats represented states like South Carolina, Georgia and Alabama, before the South's political realignment took place. If these lawmakers were in the Senate today, it's fair to say they would be Republicans. With this coalition, Fortas's nomination fell 22 votes short to overcome the filibuster. He later resigned from the court altogether.